Nursing Home Abuse and Negligence

Consequences of Arbitration Agreements in Elder Abuse Cases

November 30, 2022 | Lebowitz & Mzhen

In some ways, elder abuse law lags behind other areas of law, and as a result, our clients can feel frustrated by the processes they are up against. In a system that is not always designed to protect older individuals, it can be incredibly daunting to be subject to contracts that work better for bigger companies and facilities than they do for the individuals signing them.

One clear example of an unfair practice in elder abuse law is the reality of arbitration agreements. These clauses appear in contracts of many kinds, including contracts with banks, businesses, and online services. The language of arbitration clauses almost always states that if there is a dispute that arises between the person receiving the service and the company providing the service, those parties must work the dispute out in a private arbitration setting. The individuals are barred from bringing their claims to court.

Recently, Congress banned companies from including arbitration clauses revolving around sexual harassment in their contracts. This legislation means that if an individual has been subject to some kind of sexual harassment, she or he will automatically have the right to pursue their claim in court, even if there was an arbitration clause in the contract they signed.

Court Considers Whether Maryland Plaintiff’s Case Against Nursing Home Had to Comply with Medical Malpractice Requirements

February 1, 2018 | Lebowitz & Mzhen

When a Maryland nursing home resident is injured due to the alleged negligence of a nursing home employee, the injured resident and their family may be entitled to monetary compensation for the injuries sustained. However, depending on the circumstances surrounding the accident that caused the injury, the victim may need to file the case as a Maryland medical malpractice case.

Generally speaking, under Maryland’s Health Claims Act, claims based on a “medical injury” filed against a “health care provider” must comply with certain additional requirements to which other Maryland personal injury cases are not subject. Essentially, the question is whether the claim arose from the provision of health care or health care-related services. However, it is not necessarily clear whether a specific claim fits within this class of cases. A recent case illustrates one Maryland court’s attempt at resolving a dispute involving a nursing home resident’s fall.

The Facts of the Case

The plaintiff was a resident at the defendant nursing home. One day, while lying in bed, the plaintiff fell off the bed because the mattress was not secured to the bed frame. The plaintiff remained on the floor for approximately 45 minutes before a nursing home employee arrived to assist her.

Investigation Finds Abuse, Neglect of Special-Needs Children in Nursing Homes

April 21, 2014 | Lebowitz & Mzhen

A federal investigation of nursing homes caring for children with disabilities led to a lawsuit against the Florida state government, with the U.S. Department of Justice (DOJ) alleging that the state’s social services department is violating the Americans with Disabilities Act (ADA). United States v. Florida, No. 0:13-cv-61576, complaint (S.D. Fla., Jul. 22, 2013). The DOJ alleges that almost two hundred children, who could be receiving home- or community-based care, are receiving unnecessary treatment in nursing facilities, and that the care is often inadequate to the children’s needs. The case was consolidated in December 2013 with a private putative class action lawsuit against the state, A.R., et al v. Dudek, et al, No. 0:12-cv-60460, which raises similar claims.

Title II of the ADA prohibits state and local governments from discriminating on the basis of disability. The U.S. Supreme Court has ruled that states must make reasonable efforts to eliminate or prevent unnecessary segregation of disabled individuals in institutions. Olmstead v. L.C., 527 U.S. 581 (1999). The DOJ’s Civil Rights Division (CRD) has been rather aggressive in enforcing the ADA as interpreted in Olmstead in recent years. Since 2009, the DOJ has filed lawsuits against at least eleven states regarding alleged discrimination and neglect of disabled individuals, and it has intervened in numerous private lawsuits.

The Civil Rights Division began investigating Florida’s system for treating disabled children with “medically fragile” conditions in 2011. In a letter to the Florida Attorney General dated September 4, 2012, it reported its findings that the state was in violation of Title II of the ADA. Investigators reportedly visited the six nursing homes that house the majority of Florida’s disabled, institutionalized children. They found that many children who were residing in a nursing home would benefit more if they received care at home or in their own community. Many families stated that they wanted to bring their children home, but that state policies made it difficult or impossible to do so.

Medicare and Medicaid Regulations Assist in Preventing Nursing Home Abuse and Neglect

February 7, 2014 | Lebowitz & Mzhen

Nursing homes often rely on participation in Medicare and Medicaid. Without the assistance of these programs, fewer patients would be able to afford a stay in these facilities, and more of them would go out of business. Participation in Medicare and Medicaid, however, is contingent upon compliance with regulations and standards of care enforced by the federal government. As a case decided by the Fourth Circuit Court of Appeals several years ago shows, these regulations can help prevent abuse and neglect in nursing homes, or provide victims with evidence if abuse or neglect does occur.

A North Carolina nursing home appealed several monetary fines imposed by the Centers for Medicare and Medicaid Services (CMS), arguing in part that the evidence did not support CMS’s findings. Universal Healthcare v. U.S. Dept. of Health & Human Services, No. 09-1093, slip op. (4th Cir., Jan. 29, 2010). CMS imposed fines against the nursing home on two occasions, in November and December 2005, for violations relating to patient care. The Fourth Circuit Court of Appeals affirmed the lower courts’ rulings.

The first set of fines involved a patient identified by the court as G.J., who was to receive a dose of a pain medication, Cafergot, every morning. The CMS investigators found that the duty nurse was unable to give G.J. that medication one morning, because the on-site pharmacy had run out. Instead, they substituted the pain medication Darvocet. The pharmacy did not obtain a new supply of Cafergot until later in the day. CMS found the facility in violation of two regulations: failing to provide adequate pharmaceutical services, 42 C.F.R. § 483.60(a); and failing to provide a “quality of care” matching a patient’s comprehensive assessment, 42 C.F.R. § 483.25.

$91.5M Nursing Home Neglect Verdict Awarded to Family of Woman for Her Wrongful Death

August 9, 2011 | Lebowitz & Mzhen

Our Baltimore nursing home abuse lawyers represent victims of Maryland nursing home negligence and their families. Nursing home operators should be held liable when abuse or poor care causes a patient to suffer serious injuries, illness, or death. For more information, please visit our Maryland Nursing Home Lawyer Blog for more information.

Unfortunately, incidents of nursing home neglect and abuse throughout the US are not uncommon. Recently, a jury awarded the family of one elderly woman $91.5 million in their nursing home negligence case blaming assisted living facility Heartland of Charleston, which is owned by HCR ManorCare Inc., for her wrongful death. HCR Manor Care is a Carlyle Group nursing home subsidiary.

According to attorneys for the plaintiffs, Dorothy Douglas’s health deteriorated to the point that she was near death during her three-week stay at the nursing home in 2009. By the time she was transferred to another facility, the 87-year-old woman, who suffered from Parkinson’s disease, dementia, Alzheimer’s, and several other conditions was unresponsive, severely dehydrated, and had lost 15 pounds. She died soon after.

Staff Was Inattentive on The Night of Patient Murder at Jessup Psychiatric Hospital, Says Maryland Health Investigators

February 22, 2011 | Lebowitz & Mzhen

An investigation by Maryland health investigators into the September 2010 murder of psychiatric patient Susan Sachs by fellow patient El Soudani El-Wahhabi at the Clifton T. Perkins Hospital Center has revealed that employees at the maximum-security psychiatric facility may have inattentive and sleeping on the job that night. El-Wahhabi, who has admitted to strangling and kissing the 45-year-old victim, is charged with Sachs’ murder.

As the murder was taking place, video surveillance shows one hospital staffer sitting on a couch from where there was no view of the patients’ rooms. Another worker, who was at the nursing station, exhibited no signs of movement.

Among the report’s findings:

• The door-locking system to the ward was not activated, which means that on the night of September 25, 2010, the doors to patients’ rooms were unlocked for most of the night. This allowed El-Wahhabi to enter Sachs’ room undetected and without permission.

• After 9:15pm that night, the workers stopped conducting half-hour checks on the patients. They filled out forms to make it appear as if the checks had occurred.

• Video footage shows two of the hospital workers watching TV and sleeping a few hours before Sachs was murdered.

Remedies to such lax behavior at the hospital have reportedly been implemented since then. However, advocates continue to criticize the hospital for not doing enough to protect patients—especially women—from becoming the victim of assault. Meantime, Sheilah Davenport, the hospital’s chief executive, is to step down at the end of the month.

Maryland Medical Negligence

Hospitals and nursing homes can be held liable for Jessup County medical malpractice or nursing home negligence if poor quality care or inadequate security allowed a patient to become a victim of a crime. Sexual assault, physical assault, patient abuse, and patient violence are serious problems that occur in facilities throughout the US. There must be preventive measures and administrative procedures in place to so that such tragic incidents stop happening.

Report: State hospital staff sleeping, watching TV after woman strangled, Gazette.net, February 16, 2011
Staff at hospital partly criticized in patient killing, Baltimore Sun, February 11, 2011
Related Web Resources:

Clifton T. Perkins Hospital Center

Maryland Department of Health and Mental Hygiene

More Maryland Accident Law Blog Posts:
Maryland Mental Hospital Patient Charged with Murder of Fellow Patient, Maryland Accident Law Blog, September 27, 2010
Maryland Medical Malpractice and Fraud Alleged in 101 Claims Against Towson Hospital, Maryland Accident Law Blog, October 16, 2010
Baltimore County Wrongful Death Lawsuit Accuses Westminster Assisted Living Facility of Maryland Nursing Home Neglect, Maryland Accident Law Blog, April 28, 2010

Salmonella Outbreak at Frederick County, Maryland Nursing Home Strikes 8 People

November 24, 2010 | Lebowitz & Mzhen

The Frederick County Health Department says that eight people recently fell ill with Salmonella at the Homewood at Crumland Farms nursing home. One person who had to be hospitalized after developing Salmonella died afterward. The assisted living facility’s nursing home director says that the death was caused by other health issues.

Salmonella

This microscopic bacteria can be spread through food and feces and from person to person. Eating poultry or meat that wasn’t cooked at the right temperature can cause Salmonella. Although generally a non-life threatening condition, it can exacerbate existing health issues and can be very dangerous for infants, young kids, pregnant women, unborn babies, people with weakened immune systems, and older adults. Signs of Salmonella include fever, diarrhea, and stomach cramps.

It is important that Maryland nursing home make sure that their kitchens are clean and satisfy all safety and health regulation and that food, drink, and produce are properly handled, stored, prepared, and cooked. In the event that a nursing home resident gets sick, develops health issues, and/or dies from Salmonella or from other food-related bacteria and the contamination could have been avoided were it not for negligence, carelessness, or recklessness, the patient may have grounds for a Frederick County nursing home negligence case.

About 400 people die a year from acute salmonellosis.

Salmonella outbreak sickens eight at Frederick nursing home, Frederick News Post, November 24, 2010
Frederick nursing home hit with 8 salmonella cases, Washington Examiner/AP, November 24, 2010
Salmonellosis, CDC
Related Web Resources:
Salmonella Questions and Answers, USDA

Maryland Nursing Home Lawyer Blog

Maryland Mental Hospital Patient Charged with Murder of Fellow Patient

September 27, 2010 | Lebowitz & Mzhen

Maryland State Police have charged El Soudani El-Wahhabi, also called Saladin Taylor, with first- and second-degree murder. El-Wahhabi, who is a patient at the at the Clifton T. Perkins mental hospital, is accused of killing Susan Sachs, who was also a resident at the Jessup facility.

According to the Washington Post, Sachs’ dead body was discovered on Sunday morning by her roommate. There was string around the 45-year-old woman’s neck. State investigators later arrested El-Wahhabi, who authorities say admitted to strangling and kissing Sachs.

Sachs had been suffering from paranoid schizophrenia. She and El-Wahhabi lived in separate rooms in the same hallway in a medium-security wing of the hospital.

Baltimore County Wrongful Death Lawsuit Accuses Westminster Assisted Living Facility of Maryland Nursing Home Neglect

April 28, 2010 | Lebowitz & Mzhen

The family of Rose Sarah Cangelosi Derrickson is suing Summerville at Westminster Assisted Living for Maryland wrongful death. The 90-year-old resident died on June 30, 2009 at Carroll Hospice’s Dove House.

According to a the Maryland Office of Health Care Quality. Report, nursing home workers did not cut Derrickson’s meat on June 19, 2009 even though it was known that the Parkinson’s patient, whose ability to chew and swallow were impaired, needed help cutting up her food and using her utensils. After she fell into a “severe hypoxic [deficiency in oxygen] state,” Derrickson was transported to an emergency room. Forceps had to be used to remove a chunk of meat from her throat. Because the obstruction prevented her from breathing, a breathing tube was inserted in her and she was placed on a ventilator.

According to the family’s Baltimore nursing home negligence lawyer, Derrickson did not recover and moved into a hospice on June 23, 2009 She died seven days later from aspiration pneumonia.

Are Bed Rails a Maryland Nursing Home Hazard?

March 18, 2010 | Lebowitz & Mzhen

By now we’ve heard about crib entrapment and the dangers posed by some poorly designed cribs that have openings wide enough between the crib slats and the mattress that an infant or toddler can easily fall into the space and die from suffocation. But were you aware that hospital beds can pose a similar hazard to the sick and the elderly?

According to the Food and Drug Administration, in the last 24 years, 480 people have died from entrapment in a hospital bed. A patient’s head can gets stuck between the bed’s rails or in the middle of the mattress, which can quickly lead to asphyxiation. There have been 138 reported injuries, 185 close calls, numerous other incidents involving hospital beds that have very likely gone unreported.

Hospital Bed Rails as an Entrapment Hazard

Apparently knowledge of this hazard isn’t new. The FDA issued a warning about bed rail entrapment in 1995. With this awareness, the use of bed rails at assisted living facilities is now under 10 %–although that is still a significant number.

People have filed nursing home negligence and products liability lawsuits as a result of personal injuries and wrongful deaths caused by a hospital bed with rails. One nursing home patient, Harry Griph, died not from failure to thrive, which the 75-year-old was suffering from, but because his neck got trapped between the mattress and bed rail. His cause of death was asphyxiation.

Hospital Bed Rails as a Fall Hazard

Although bed rails are considered a safety device for keeping confused, disoriented medicated, sick, or restless people from falling out of their beds in nursing homes and hospitals, bioethicist and geriatrician Steven Miles told the New York Times that while bed rails do lower a person’s fall risk by 10 – 15%, they increase injury risk by approximately 20%. A patient that tries to climb over the rails to get out of bed can end up falling from a higher elevation and sustaining a head injury.

Assisted living facilities can be held liable for Maryland nursing home negligence if they allowed a hazard to exist on the premise that should have been removed or repaired. A person who sustains a traumatic brain injury from falling off a hospital bed or the family members of a resident that dies from suffocation during a bed entrapment accident may have grounds for a Maryland injury lawsuit. The manufacturer of a poorly designed or defective hospital bed can be sued Maryland products liability.

Safe in Bed?, New York Times, March 10, 2010
Siderails, Falls in Long-Term Care
Related Web Resources:

Maryland Nursing Home Care Guide

Falls in Nursing Homes, Maryland Nursing Home Lawyer Blog